Wednesday, October 12, 2022

A Requirement of Colorblindness in University Admissions is Constitutionally Unjustifiable and Impossible in Practice

 By Eric Segall

On Halloween day, the Supreme Court will hear two cases involving the use of racial criteria in university admissions. The plaintiff in both lawsuits is Students For Fair Admissions (SFFA ), a non-profit association long committed to asking the Supreme Court to take control of thousands of colleges and universities across America and prohibiting them from considering the race of their applicants in any way. One of these cases, against Harvard, is brought under a federal statute, and the other, against the University of North Carolina at Chapel Hill (UNC), is brought under the federal Constitution. I will leave the Harvard case to statutory interpretation experts. This post is about the United States Constitution.

Part I of this post addresses the legal issues surrounding a constitutionally required color-blindness rule. Part II shows why such a requirement would, in any event, be extremely difficult to enforce, leading to costly, lengthy, and disruptive litigation in the federal courts that won't, in any event, remove race completely from university admissions. Such a formal rule would simply drive that use further underground.

I. The Constitution 

Before I turn to text, tradition, and history, I can't help but mention that for almost 50 years plaintiffs have repeatedly asked the Supreme Court to rule that the Constitution requires color-blind admissions at public universities. The Justices rejected this claim in 1978, 2003, and again in 2016. There is no ambiguity in the Court's repeated refusal to impose this rule. If the Court reverses itself on this question, it will again show how precedent simply does not matter to this institution. It would also mean that, in just two terms, the Court will have either dramatically changed or expressly reversed the law of abortion, gun control, church and state, and affirmative action.

Now, to the merits. The phrase "color-blindness" is of course not in the United States Constitution. The section of the Constitution that every Justice who has ever suggested that color-blindness is a constitutional requirement relies on is Section 1 of the Fourteenth Amendment, which prohibits the states from denying any person the "equal protection of the laws." 

As a matter of text, there is no plausible argument that this one phase requires colleges and universities to completely ignore race when building their classes. Race is not even mentioned in this clause. Moreover, there is no single definition of "equal" to answer the question of what to do in a country in which people of color were subject to formal, legal discrimination under the law for generations. It may well be, as a policy matter, that the way to redress that inequity is to use formal racial criteria to really insure the equal protection of the laws, or maybe the best answer is to move forward and leave race behind altogether (though as argued below that turns out to be nearly impossible). But either one is a policy choice that is neither forbidden nor required by the text of the 14th Amendment. 

This country has an unbroken tradition of non-color-blindness. This statement is not arguable. The South was racially segregated under law until roughly 1954 (really 1964) and starting in the 1970's, racial criteria were used by many if not most public universities. Any argument from tradition is not only a non-starter but it suggests exactly the opposite of a judicially imposed color-blindness requirement on government entities.

Originalist arguments fare no better. As many scholars have observed, the original public meaning of the 14th Amendment simply could not have been that all racial criteria in government programs are impermissible, given the laws at the time that included racial criteria. In addition, the drafters and ratifiers of the 14th Amendment were well aware that the District of Columbia schools run by Congress were segregated. The men who both tried to help the new freely enslaved people through laws designed for them but who also were content to allow public schools to be segregated under law were not believers in any form of color-blindness. Put yourself in 1868 and imagine thinking the country could move from the horrors of slavery to equality under the law without any form of government aid tied to race? Such a notion would be preposterous.

The brief in these cases that tries the hardest to make an originalist argument for color-blindness is an amicus one written by Ed Meese. He is a former Attorney General and one of the earliest and strongest proponents of originalism as a method of constitutional interpretation. Of course, his version of originalism, before the GOP captured the federal courts with 11 years of judges from 1981-1992, was based on judicial deference to other branches of government, but that is an argument for another day.

I encourage people to read this brief. It is quite apparent that General Meese is playing defense against compelling arguments that the 14th Amendment does not require color-blindness as a matter of original public meaning. He relies mostly on two law review articles written by eminent scholars. One, written by Michael McConnell, argued that Brown  was justifiable on an originalist basis. Many other scholars have argued that the evidence presented by McConnell, much of which postdates the ratification of the 14th Amendment, does not support his conclusions. Whatever one thinks of the article, however, its purpose was emphatically not to suggest that the 14th Amendment prohibits any and all racial criteria in public university admissions but rather to support Brown's holding that complete segregation by race under law violates the 14th Amendment. Whatever his current views, McConnell's argument in this article does not rebut the evidence scholars have used to argue that color-blindness in all forms is not required by the 14th Amendment's original meaning.

The other article General Meese relies on is one written by originalist scholar Michael Rappaport. This article has the same defensive quality of the Meese brief. In any event, Rappaport said the following while he was trying to bat away the many arguments that the 14th Amendment does not require color-blindness:

Based on the available evidence, I believe that the case for concluding that the Fourteenth Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. I do not, however, take the next step and argue that the Constitution’s original meaning forbids affirmative action. That would require a satisfactory understanding of the original meaning of the Fourteenth Amendment, an understanding that I do not believe we currently possess.

Rappaport's article by his own admission does not make a strong case for the Court to hold as an original matter that all racial criteria in government programs are unconstitutional. The many scholars who have argued the other side in countless articles are simply more persuasive.

It is, of course, likely that the Supreme Court's six conservatives will ignore or distort the relevant text, tradition, and history to rule that the 14th Amendment requires color-blindness in all university admissions. If they do so, it will be a pure policy choice which will be difficult if not impossible to enforce, which also suggests the Court should not adopt it.

II. Color-Blindness in University Admissions Will be Difficult to Enforce and Lead to Much More Litigation

In his dissent in Gritter v. Bollinger, Justice Scalia, who long advocated for color-blindness, said the following:

Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anti-constitutional holding that racial preferences in state educational institutions are OK, today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation.

If the now-in-place strict scrutiny test for affirmative action prolonged litigation of admissions programs, let's try to imagine what a rule of color-blindness would actually mean. Would the Court require all public universities to affirmatively require that prospective applicants not identify their race? That seems implausible but likely will have to be litigated. Moreover, it is often the case that the race of applicants comes through via their activities and accomplishments. How would courts monitor that process? Will we litigate which files are suggesting the race of the applicant in too strong a way? 

How about references to geographic areas in personal essays which might give strong clues as to the race of the applicants (how many people of color are applying to UNC from Idaho or Montana and how many whites are applying from Watts)? None of these questions will be easy to answer and they may all need to be litigated in this new so-called "color-blind" world.

Now let's step into the admissions committee room. Okay, the members must act in a "color-blind" way. What exactly does that mean? Are reports with racial breakdowns now illegal? That would seem to amount to invasive judicial micro-managing. If the Court rules that color-blind admissions are required, it is extremely likely that schools will alter their reliance on standardized tests. If this is done for the purpose of arriving at a more diverse class, is that constitutional? That litigation is inevitable.

What if applicants clearly list accomplishments that reveal their race or what if in undergraduate admissions there are interviews that reveal race? Is the committee supposed to not think about race at all? Try not thinking about LeBron James after I tell you not to think about LeBron James. No easy feat. How is that rule going to be enforced? 

Can admissions committees give new and substantial weight to activities that demonstrate a commitment to racial justice? That issue will likely have to be litigated. How about diversity and inclusiveness programs unrelated to admissions, such as scholarships for already admitted students and programs for at need or at risk students, many of whom are people of color (though certainly not all). Will any or all of these programs be unconstitutional?

Shortly before the last affirmative action decision was issued by the Supreme Court in 2016, I interviewed several admissions officers. They were clear that whatever the Court was going to hold, race will somehow or someway still play a role in admissions. They were not going to give up on accepting and enrolling racially diverse classes. As one observer has noted:

If the court bans affirmative action...colleges and universities can find other methods to create the diverse campuses they desire. Like private employers, who generally can’t consider race in hiring, they could work to expand their applicant pool and encourage minorities to apply. They might also develop increased financial aid and other support programs to boost access to education. States looking for a race-neutral alternative may follow the lead of Texas, which guarantees public university admission to all students who graduated in the top 10% of their high school classes. However, it is still unclear whether this approach really increases diversity...Colleges and universities will need to make sweeping changes to admissions policies.

It is likely that many such attempts to generate more diverse campuses will have to be litigated and the line between permissible and impermissible criteria may well vary by state and by region according to the values of lower court judges and eventually the Supreme Court. Every such lawsuit will be defended with taxpayer dollars.

Some people might respond to all of this that ten states have banned affirmative action under state law and the sky has not fallen. First, there is obviously a huge difference between the people deciding to veto affirmative action through the democratic process and unelected judges doing so. Second, a national Supreme Court rule barring all use of race in university admissions will not be looked at by prospective public interest groups such as SFFA the same way as state law bans. Those against affirmative action will use the decision to litigate what the decision means across the range of issues discussed above. 

A rigid color-blindness rule applicable in all fifty states is not the same as a rule applying to ten states in terms of potential litigation. Finally, many people opposed to affirmative action believe that state universities are still using some devices to insure minimal racial diversity but doing so quietly in ways that may or may not violate state laws. You can bet that armed with a Supreme Court decision groups like the SFFA will move on to smoking out those practices through costly litigation.

We do not now and never have lived in a color-blind country. At this moment in our history, the imposition of such a rule by unelected, life-tenured judges would amount to massive upheaval, and not just in university admissions. All of this might be necessary if the clear text of the Constitution or its history required such a rule. But neither do, as numerous prior Supreme Courts over six generations have also concluded.