SCOTUS Can Uphold Either Race-Based College Admissions Or Constitutional Equality, Not Both

The Supreme Court will take up the case brought by Students for Fair Admissions (SFFA) against Harvard and the University of North Carolina on Monday. SFFA simply asks that universities judge applicants on their individual achievements, rather than taking their skin color into account.

In virtually every other area of life, the Constitution and the federal civil rights laws forbid the government from using race as a plus or minus factor in making decisions. Government cannot use race to distribute government funds, provide benefits, deploy police, or run prisons or hospitals. Yet in Grutter v. Bollinger, the justices decided to create a rare exception to the ban on government and government funding recipients’ use of race for admissions in higher education. A majority in Grutter accepted the dubious claim that colleges could seek racial diversity as a proxy for intellectual diversity — which relies upon the pernicious assumption that certain races could only hold certain ideologies.

As Yogi Berra observed, predictions can be hard, especially about the future. But with Chief Justice John Roberts bolstered by Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the current Supreme Court appears more committed to the principle of equal protection than its predecessors.

While these mostly recently appointed justices haven’t made their views clear on race, other conservative-leaning justices have. “It is a sordid business, this divvying us up by race,” Roberts has written. “Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society,” the late Justice Antonin Scalia wrote. And according to the court’s sharpest critic of racial preferences, Justice Clarence Thomas, “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

While progressive media are already warning of the sky falling should the court strike down race-based admissions, don’t fall for the hype. Defenders of race preferences will claim that affirmative action is necessary to ensure opportunity for racial and ethnic minority students. In fact, the court can promote opportunity for all by upholding other constitutional rights, including some that have been tragically under-enforced for decades.

Expect to see games of motte and bailey — where Grutter is defended as a limited decision when it suits defenders of race preferences but then framed as having much broader implications when their interests run the other way. While Grutter does have some limiting language, in practice those limitations have barely been enforced. Letting Grutter stand would almost certainly continue the expansion of race-based decision-making in other areas of law and policy.

Enforcing Other Constitutional Provisions

The best evidence available indicates that race preferences often harm their intended beneficiaries. Racial preferences also treat our economy and society as a zero-sum game, where racial groups fight for their share of the spoils through government power. But a better way exists to guarantee opportunities for all Americans — by enforcing constitutional rights.

First, the Supreme Court can vindicate the right to earn a

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