It’s not As Bad As You Think, Maybe (Guest Post by Professor David B. Owens)

[N.B. from Mike: Blogger inserts my name above because I'm hosting this guest post, but it was written by today's special guest contributor, Professor David B. Owens, civil rights lawyer and director of the Civil Rights and Justice Clinic at the University of Washington School of Law.]

Over the course of 237 pages, the Supreme Court’s recent decision forbidding the use of race in school admissions (the Harvard-UNC Cases) is already inspiring significant discussion, including debates about college admissions, history, and precedent. 

I will admit that I have not spent significant time with Justice Thomas’s concurrence or Justice Jackson’s dissent. Ironic, I know.


Other scholars will undoubtedly write about the impacts of this case on constitutional law, about affirmative action more generally, etc. I am not a race scholar. I am a civil rights attorney. As a result, perhaps, my responses to the decision offer a perspective that might not be the focus of other commentary and may not make the highlight reels. 


I offer five quick points.  In the end, while I had many fears about the scope of this decision beyond the question of affirmative action, the decision is more narrow than it may feel at first blush. The Harvard-UNC Cases are not as significant, for example, as Dobbs last term or other cases under the Roberts Court (like Citizens United, in my view) that have dramatically changed our society. 


First, a point about the Fourth Amendment. In dissent, Justice Sotomayor pointed out that the Supreme Court has “allowed the use of race when that use burdens minority populations.” Both cases she cited, United States v. Brignoni-Ponce, 422 U. S. 873 (1975), and United States v. Martinez-Fuerte, 428 U. S. 543 (1976), concern racial profiling in law enforcement of brown people along the U.S. southern border. The main case permitting racial profiling in law enforcement, Whren v. United States, 517 U.S. 806 (1996), was not mentioned at all. 


This is very curious. Chief Justice Roberts rejects Sotomayor’s point on the basis that she cited “two cases that have nothing to do with the Equal Protection Clause, because they are fourth amendment cases.” Slip Op. at 15-16 n. 3. 


But, Mr. Chief Justice, they are Fourth Amendment cases about race. In those cases, the Supreme Court has accepted the use of race as a consideration that is “reasonable under the circumstances” for police to take into account when it comes to the police putting people in jail or prison. However, the use of race as a consideration is suddenly incoherent, unquantifiable, and impermissible when it comes to college admissions. While many have seen Whren as one of the worst policing decisions in recent times, the decision is important because it tells people—let’s face it, Brown and Black people—that they must make Equal Protection Challenges to pretextual stops and cannot do so under the Fourth Amendment. In fact, when confronted with these realities, the Supreme Court has permitted things like a “high crime” area to justify over-policing (e.g. in Illinois v. Wardlow, 528 U.S. 119 (2000)), and the Roberts court turned a blind eye, more recently, to racialized policing on the ground and the over-policing of certain communities by permitting searches to be excused even if they were completely unlawful (e.g., in Utah v. Strieff, 579 U.S. 232 (2016)) Some state courts have taken a different tack, allowing constitutional analysis under state analogues to the Fourth Amendment to consider these racial realities. For example, Washington provides that race can be taken into account when determining whether someone would feel free to leave and has been “seized,” while Massachusetts has recognized that a Black person fleeing from the police is not inherently “suspect” or “criminal,” as Black men may very well have reason to flee even if innocent (e.g., to avoid a violent, potentially deadly encounter like the one Tyre Nichols faced regardless).


What do we make of these cases today? Only time will tell. My initial intuition is that the Court will continue to engage in what Professor Pam Karlan (who was cited by Sotomayor in dissent) calls a “shell game.”

In this context, the Court weakens constitutional protections in one area by talking about the availability of a remedy in another area. And, then, when you get to that other area, the Court weakens your constitutional protection in that area by pointing to the first area. As I have previously written, in the Fourth Amendment context, this means weaking the exclusionary rule in a criminal case by pointing to the viability of a civil rights lawsuit under 42 U.S.C. § 1983, and then, in a § 1983 case, strengthening qualified immunity or weakening rights protections by pointing to the availability of exclusion in a criminal case. In the context of racial justice, bringing an Equal Protection claim in a § 1983 lawsuit is nearly impossible under prevailing law, as officers can consider race when apprehending suspects, and a plaintiff must show that similarly situated people of the same race were treated the same way. For example, it does not violate Equal Protection in the policing context to be stopped as a Black man in a hoodie, unless you can show that other White men in hoodies walked down the same street. Because we could not show this for the fatal encounter involving my client Jordan Baker, and even though the officer admitted race was a factor he considered when stopping Baker, that did not matter under the law


The upshot: can the Harvard-UNC cases present a new opportunity for attacking Whren or the requirement of purposeful discrimination under the Equal Protection clause? If so, that might actually do a great deal of good for Black and Brown people in their every day lives, far and apart from the few of us able to overcome structural barriers to even have a shot of getting into an elite university. 


I doubt it, which is my second point. The Harvard-UNC cases do not even sweep so broadly to preclude all forms of race in college admissions and so it may be foolish to think they go beyond this context in a way that could be used to attack racial bias in policing. For one, the majority opinion notes that its decision does not even necessarily apply to military academies. Slip Op. at 22 n.4. In addition, the majority did not formally overrule its decisions in the Texas cases as they relate to using a “critical mass” concept, whereby schools focus on a critical mass of people of color. Slip. Op. at 37. While the Supreme Court is—obviously—hostile to this concept, it seems to me that there are ways to bring racial justice to admissions, despite this decision. 


Third, there is an irony in the Court’s decision rejecting the rationales offered by the universities. The majority rejects the school’s goals—e.g., promoting a robust exchange of ideas, creating diverse leaders, and breaking down racial stereotypes—because thy “cannot be subjected to meaningful judicial review.” The majority thus complains that these goals are not “sufficiently coherent” to be reviewed, in part because it is “unclear how courts are to measure any of these goals.” Slip op at 23. I say this is ironic because typically the fact that other institutions are addressing big, political goals that cannot be meaningfully subject to judicial review is a reason the court will not get involved. Indeed, in an area where meaningful ways to create statistical models involving the impact of government action have been employed and submitted to the courts in the context of voting redistricting and political gerrymandering, the Court has gone so far in eschewing judicial review that it holds these questions are “nonjusticiable,” meaning federal courts cannot adjudicate them at all. They are too political. It seems that if a set of problems facing our society—racial reconciliation, justice, and equality—is too big for a court to meaningfully measure, perhaps the Court should not be in the business of regulating it. Racial justice, too, it seems, must be a political question. However, as Chief Justice bluntly states: “The role of race had to be cabined.” Slip Opat 18. 


In the vein of assessing rationales offered to support affirmative action in college admissions, and fourth, I was shocked to see that neither school defended its decision to include race in their admissions as a result of past racial discrimination. See id. at 36 n.8 (noting that “neither university defends its admissions system as a remedy for past discrimination—their own or anyone else’s.”). They may be trying to survive scrutiny after Bakke and Grutter, but this is striking to me. The universities, which have engaged in past discrimination, do not acknowledge their current policies are meant to remedy their own discrimination (both prior, and ongoing). This seems to be the way forward, and consistent (in a weird way) with the policing cases. 


Chief Justice Roberts states: 


When it comes to workplace discrimination, courts can ask whether a race-based benefit makes members of the discriminated class ‘whole for the injuries they suffered.’ And in school segregation cases, courts can determine whether any race-based remedial action produces a distribution of students ‘comparable to what it would have been in the absence of such constitutional violations.’ 


Slip Op. at 23-24 (respectively citing Johnson v. California, 543 U.S. 499, 512–513 (2005), quoting, Franks v. Bowman Transp. Co., 424 U. S. 747, 763 (1976) (internal quotation marks omitted), and quoting Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 420 (1977) (cleaned up). 


In other words, we can still consider race when determining how to remedy specific acts of racial discrimination. While the Harvard-UNC cases repudiate the notion of a particular school addressing “societal discrimination,” there seems to be no question, from a constitutional perspective, that these schools (like other actors) can make race a factor in remedying race discrimination they themselves have undertaken. A path forward, then, is to gather data in these schools—which may be a painful endeavor—cataloging acts of race discrimination that need to be remedied. 


I will be frank. My main worry in these cases was that the Supreme Court would say that even remedying specific acts of race discrimination is itself unconstitutional because one has to consider race to do that. The State Court decisions above in the state analogues to the Fourth Amendment would be at risk. Part of that worry was magnified just weeks before when, in a Voting Rights Act case, Justice Kavanaugh did not join the potion of the decision that explained: “there is a difference ‘between being aware of racial considerations and being motivated by them.’ The former is permissible; the latter is usually not.” Allen v. Milligan, 143 S. Ct. 1487, 1510 (2023) (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)) (Roberts, C.J.).  The majority decision—which even Justice Thomas joined in full—does not repudiate any consideration of race, including the basic acknowledgement that to rectify a racial injustice one may consider race in so doing. Fortunately, the Court did not take this step.  


Fifth, and finally, I offer a point that seems to be lost in the debate about affirmative action and racial justice. The Harvard-UNC cases often use the phrase “color of their skin” to talk about race discrimination, and particularly the issue of “stereotyping.” Chief Justice Roberts says, for example, 


[t]he entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.

Slip Op. at 29. 


And, to Justice Roberts, the “most troubling” part of defending affirmative action is that it requires “a judiciary that picks winners and losers based on the color of their skin.” Id. at 38.  


I will admit I was truly confused by what this means. How could this be just about skin color? And, how could it not be about racial justice? Ironically, it is the “colorblind” Constitution that seems to confine skin color to just that—skin color. But race is more than that. The well documented fact of Black men being perceived as dangerous or threatening merely for having a firearm that White people brazenly show around state capitols or now, as a trend, put in Christmas cards, is not just about skin; it is about social experience and deeply engrained bias that goes beyond skin altogether.


In some respects, then, there is a deep irony with the phrase the “color of your skin”—it simultaneously minimizes the underlying racial identity that it nominally seeks to “protect.” It is not the mere color of my (brownish) skin that makes racism so palpable; it is how society has treated me because of that hue. In other words, limiting discussions of racial justice to skin color strikes me as missing so much of what race is about, based upon lived experience.

The better argument—and the truth I must live regardless of what the Supreme Court says about “color blindness”—is that race is so ubiquitous and important to how an individual interacts with the world that they cannot avoid having different perspectives even though those perspectives are different.

Stereotyping is easy to condemn when you talk about skin color. Stereotyping has less salience when you focus on the reality, validated in the social science, that having that skin color impacts people's every day lives. You can be urban, rural, rich, poor, educated, illiterate, liberal, conservative, or any number of things and still not escape the fact that one’s skin color matters to that life every single day. It is this lived experience that justifies the idea of a “critical mass,” and it is this idea that the universities would not (and perhaps, frankly, could not) defend in honest terms. But, there is no dispute, as Justice Kavanaugh put it, that “race discrimination still occurs and the effects of past racial discrimination still persist.” If that is the case, then there is a path forward to fix this house. It is appropriate for government, schools, and others to take account of racial discrimination when attempting to rectify race discrimination.