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Chief Justice John G. Roberts Jr.’s mentor, the late Chief Justice William H. Rehnquist, opposed Brown v. Board of Education when he was a clerk to Justice Robert H. Jackson. In a memo to Jackson, Rehnquist urged that the doctrine of “separate but equal” be upheld, writing: “I think Plessy v. Ferguson was right and should be reaffirmed.” By 1971, when Rehnquist was nominated to the Supreme Court, Brown was sufficiently well established that he felt compelled to deny his position and attribute it to his deceased former boss, Justice Jackson. (Jackson in fact voted with a unanimous majority in Brown to overturn Plessy and segregation.) Rehnquist made the same claim in his 1986 confirmation hearing to be chief justice.
But the historical record available today makes it clear that the memo endorsing segregation reflected Rehnquist’s own views. In 1987, when Ronald Reagan nominated Robert H. Bork to the court, Democrats blocked his nomination, pointing out that his originalist judicial philosophy would overturn Brown and pave the way to a return of racial segregation. From then on, opponents of integration would adopt the covert approach pioneered by Rehnquist: Rather than attack Brown directly, they would quietly undermine it by limiting its scope and distorting its meaning.
Over time they turned Brown against itself, supplanting the egalitarian imperative of desegregation with one that was compatible with continued segregation: colorblindness. It had been well understood that colorblindness was compatible with segregation. Long before Brown, Jim Crow states used formally colorblind laws to lock in racial hierarchy. For example, after Reconstruction, they enacted literacy tests and poll taxes to disenfranchise recently emancipated slaves but added “grandfather clauses” that exempted anyone descended from prewar voters from the new requirements. Later, segregated school districts tried to circumvent Brown with colorblind “school choice” plans that assigned most students to the (segregated) schools they had previously attended unless they objected to the assignment. Today’s most prominent advocate of the colorblind interpretation of Brown and the 14th Amendment is a former Rehnquist clerk, Chief Justice Roberts.
Those tactics worked. Today, many K-12 schools are as racially segregated as they were in the 1960s, and for most students in those schools, college offers their first significant exposure to people of other races. With the Students for Fair Admissions cases, the Supreme Court has taken a big step toward ensuring that selective colleges and universities become as segregated as the typical K-12 school in a wealthy suburb.
Colleges should reject speculative interpretations and refuse to abandon lawful diversity efforts in anticipation of future legal challenges.
But law does not reside between the lines of judicial opinions. It must be unambiguously stated. Colleges should reject speculative interpretations and refuse to abandon lawful diversity efforts in anticipation of future legal challenges. Instead, they should look closely at what the court actually held in the Students for Fair Admissions cases.
Notably, the court did not explicitly overturn the precedents of Bakke and Grutter, both of which held that race-conscious affirmative action is legally permissible. So those decisions remain good law. In fact, the majority opinion states that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life …”
Despite lots of verbiage implying a sweeping mandate for colorblindness, Students for Fair Admissions holds only that the challenged admissions policies did not satisfy the existing standard set out in Grutter. The decision does not address the legality of other diversity, equity, and inclusion programs, outreach efforts, scholarships, or campus organizations. Nor is it relevant to employment decisions, which are governed under entirely distinct laws. Some of the concurring opinions make insinuations about those other, unrelated issues, but those opinions are not law — they are merely the musings of individual justices about questions that were not before the court, musings that did not command a majority of even this extraordinarily reactionary court.
The court engaged in convenient and inaccurate speculation designed to denigrate the motivations of colleges engaged in affirmative action and to give cover to their segregationist holding. But that also limited the scope of the ruling to policies that fit the description. For example, in contradiction of the record established at trial, Justice Roberts claimed that the challenged admissions programs were unlawful because they were based on the “offensive and demeaning assumption” that students “of a particular race, because of their race, think alike.” That objection doesn’t apply to race-conscious admissions practices that don’t assume students of a particular race think alike.
Similarly, Justice Roberts complained that the challenged affirmative-action policies were of potentially indefinite duration, in violation of the requirements of Grutter. That objection is easily addressed by adding a sunset provision. Indeed, despite Justice Roberts’s denigration of Justice Sonia M. Sotomayor’s suggestion that affirmative action should continue “until racial inequality will end,” this is in fact a concrete and finite duration for the practice that should satisfy his objection — unless, that is, Justice Roberts expects racial inequality to endure indefinitely.
This leaves the complaint that affirmative action discriminates against some applicants because “college admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former groups at the expense of the latter.” That might seem to be a truism, but it misunderstands why race is relevant to college admissions. Ultimately, “race” is simply a convenient proxy for the unique experiences and disadvantages of living as a member of a stigmatized social group in an often bigoted and segregated society. Considering those specific experiences doesn’t involve stereotyping and is no more racially discriminatory than considering the unique experiences and perspectives of, say, rural applicants or applicants who are the first in their families to apply to college.
Similarly, selective colleges can consider how the legacy of slavery and Jim Crow affects the descendants of slaves and Americans who lived under legally imposed segregation. Such considerations are especially salient for the many colleges that benefited from slave labor or the profits of the slave trade. Students for Fair Admissions holds that colleges and universities can still consider such experiences and disadvantages — admissions officers just can’t assume them from the fact of an applicant’s self-reported racial identity. The court requires colleges to abandon a proxy for such experiences — racial identity — and consider only the experiences and perspectives themselves. That will make an already cumbersome and time-consuming admissions process more so, but it need not fundamentally change the underlying goal: to ensure that admissions criteria take account of the salience of racial prejudice, bias, and affinity for as long as those factors remain an important part of American social life.
And, of course, colleges can and should take a hard look at admissions practices that effectively screen out qualified members of underrepresented groups. Already, there’s a civil-rights complaint attacking legacy preferences as discriminatory. Many other common polices, such as preferences for applicants from rural areas and athletic recruitment for patrician sports such as sailing and lacrosse, also have a discriminatory impact. Indeed, standardized-test scores and high-school grades have a profound racial impact that is justified only to the extent that they predict academic success: Those measures are most useful in setting a floor to eliminate applicants who are unlikely to succeed, and are of questionable value in distinguishing applicants above that threshold.
The Roberts Court has betrayed both the nation’s commitment to racial justice and the noble legacy of the Supreme Court itself. But the strength of that commitment and the power of that legacy have deterred it from openly reversing the progress toward racial equity achieved by past generations of activists, educators, and students. Colleges and universities must follow the letter of the law, but they need not volunteer to help promote the covert segregationist agenda of a reactionary faction of the court. Instead, they can prevent the resegregation of our wealthiest and most revered campuses by holding this court to its word instead of rushing to anticipate and fulfill its worst ambitions.